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American Federation of Government Employees, Local 801, Council of Prison Locals 33 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Waseca, Minnesota (Agency)

American Federation of Government Employees, Local 801, Council of Prison Locals 33 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Waseca, Minnesota (Agency)

[ v58 p455 ]

58 FLRA No. 109

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 801
COUNCIL OF PRISON LOCALS 33
(Union)

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Joseph L. Daly filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that employees were entitled to overtime compensation. For the reasons that follow, we find that the Union has failed to establish that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Background and Arbitrator's Award

The grievants are correctional officers assigned to the 2:30 p.m. to 10:30 p.m. shift. The grievance alleged that they were required to remain at work past the end of their shift until the official count of inmates had been completed, and that they were not compensated for the overtime.

When the grievance was unresolved, it was submitted to arbitration. The parties did not stipulate the issue to be resolved. However, the Arbitrator noted that the Union and Agency identified the issue in part as whether the grievants worked beyond the end of their [ v58 p456 ] eight hour shift. The Arbitrator also noted that the Agency identified an additional issue as to whether the grievants notified management and received authorization for working past the end of their shift.

The Arbitrator denied the grievance after concluding that the Union had not shown by a preponderance of the evidence that any of the grievants had, in fact, actually worked beyond the end of their shift. The Arbitrator found that although the evidence submitted by the Union showed the time of the official count, "it does not show the time the employees actually left the building." Award at 13. Also, the Arbitrator noted the conflicting testimony given by employees that they were expected to stay until the official count cleared and the testimony by management witnesses that the grievants were neither required nor expected to stay until the official count was completed. Lastly, relying on testimony by the Agency's Warden, the Arbitrator found that "if the employees do work overtime because management `suffers [or] permits' the employees to work beyond the normal eight hours, it is incumbent on the employees to fill out the proper overtime paperwork and request compensation for the overtime." [n1] Id.

III. Positions of the Parties

A. Union's Exceptions

The Union claims that the Arbitrator's award is contrary to 5 C.F.R. § 551.402. [n2] In this connection, the Union asserts that the Arbitrator's finding that it was "`incumbent upon the employee to fill out the proper overtime paperwork and request compensation for the overtime[,]'" improperly shifts the burden assigned to the Agency under § 551.402. Exceptions at 1 (citing Award at 13). The Union contends that "[i]t is unreasonable for the Agency to be relieved of its statutory duty to compensate employees based on a lack of documentation it is required to maintain." Id. The Union maintains that the testimony of the grievants that they remained until the official count cleared and the documentation submitted by the Union which shows the time the official count cleared is the "most accurate" evidence of the overtime worked by the employees. Id. at 2.

Also, the Union claims that the Arbitrator's finding that employees must provide certain paperwork or documentation if they actually worked the "suffered or permitted" overtime is a nonfact. In this connection, the Union cites the Arbitrator's reliance on the testimony of the Agency's Warden that there was no proof or documentation that the grievants worked the overtime. The Union further contends that the Arbitrator's finding that documentation is required for back pay for overtime that the Agency has "suffered and permitted" is inconsistent with Soc. Sec. Admin., Baltimore, Md., 53 FLRA 1053 (1997) (SSA). Exceptions at 2.

B. Agency's Opposition

The Agency maintains that the award is not contrary to § 551.402. The Agency asserts that consistent with § 551.402, it had "a system in place for controlling hours worked . . . [that required] employees . . . to receive written authorization to work overtime so that overtime amounts could be properly monitored and controlled." Opposition at 4. The Agency also argues that the Union has failed to show that the Agency's system violates § 551.402, since the regulation does not require any "specific method of accounting for hours worked, . . . enforcement mechanism, standard of proof, or burden of proof for showing that the method used by an agency is proper or improper." Id.

The Agency maintains that the Union's nonfact exception should be denied since "the Arbitrator properly reviewed all the available evidence, both documentary and testimonial, on the disputed issue of whether the Agency `suffered or permitted' the covered employees to work overtime." Id. at 7 (citing Award at 7-13). Also, the Agency maintains that SSA does not support the Union's contention.

IV. Analysis and Conclusions

A. The award is not based on a nonfact.

To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry Air Force Base); Gen. Serv. Admin., Region 2, 46 FLRA 1039, 1046-47 (1992). Moreover, an arbitrator's legal conclusions cannot be challenged on the grounds of [ v58 p457 ] nonfact. See, e.g., United States Dep't of Defense, Education Activity, Arlington, Va., 56 FLRA 744, 749 (2000).

The Arbitrator found that the grievants had not worked any overtime and that even if they had done so, certain paperwork or documentation was required in order for them to be paid the overtime. The Union claims that the Arbitrator's finding that employees must provide certain paperwork or documentation if they actually worked the overtime is a nonfact. [n3] In this connection, the Union cites the Arbitrator's reliance on the testimony of the Agency's Warden that there was no proof or documentation that the grievants worked the overtime.

In essence, the Union's exception is not challenging an alleged nonfact, but rather disputes the Arbitrator's legal conclusion that the grievants were not entitled to compensation for "suffered or permitted" overtime unless certain documentation of the overtime that was worked was provided. As such, the Union's nonfact claim challenges the Arbitrator's legal conclusion that the Agency did not violate any law, rule or regulation by not paying overtime compensation to the grievants. See United States Dep't of the Navy, Naval Explosive Ordnance, Disposal Tech. Div., Indian Head, Md., 57 FLRA 280, 287 (2001) (agency's nonfact claim disputing the arbitrator's interpretation of what evidence governs the determination of FLSA exemption, rather than arbitrator's factual findings, provided no basis for finding that the award was based on nonfacts). Accordingly, the exception provides no basis to overturn the award.

In addition, the Union claims that the Arbitrator's finding that documentation is required for back pay for "suffered and permitted" overtime is inconsistent with SSA, in which the Authority upheld an arbitrator's award of back pay for certain overtime work that was "suffered or permitted" where the agency had not kept any records. In SSA, the Authority found that the agency committed an unfair labor practice by failing to comply with the arbitrator's award of back pay overtime based on the nature of the agency's payment plan and its methods for calculating the amount of back pay to which the grievants were entitled. Unlike the circumstances in this case, in SSA, it was undisputed by the agency that the grievants had actually worked the "suffered or permitted" overtime, and as a result, the absence of records was not at issue in the case. As such, we find that the Union has not demonstrated that the Arbitrator's award is inconsistent with SSA.

B. The award is not contrary to 5 C.F.R. § 551.402.

The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

As noted above, after reviewing the record evidence, the Arbitrator found that the Union failed to establish that any of the grievants had, in fact, actually worked beyond the end of their shift. In addition, the Arbitrator found that had the employees worked the "suffered or permitted" overtime, it was their responsibility to complete proper forms and requests for compensation for the overtime. The Union claims that the Arbitrator improperly relied on the failure of the employees to submit documentation verifying that they worked the authorized overtime in violation of § 551.402. However, also as noted above, the Arbitrator's finding that no overtime was worked is not deficient. As a result, we conclude that the Agency cannot have violated 551.402 by failing to retain records of overtime that was not worked. See NFFE, Local 1437, 53 FLRA at 1710. Therefore, the Union has not demonstrated that the award is contrary to § 551.402.

Accordingly, the Union has not demonstrated that the award is deficient, and we deny the exceptions.

V. Decision

The Union's exceptions are denied.

Footnote # 1 for
58 FLRA No. 109
- Authority's Decision

"Suffered or permitted work" is defined in 5 C.F.R. § 551.104 as any work performed by an employee for the benefit of an
agency, whether requested or not, provided the employee's supervisor knows or has reason to believe that the work is being performed
and has an opportunity to prevent the work from being performed. See generally, Gen. Serv. Admin., 37 FLRA 481, 484
(1990).

Footnote # 2 for
58 FLRA No. 109
- Authority's Decision

5 C.F.R. § 551.402 provides:

(a) An agency is responsible for exercising appropriate controls to assure that only that work for which it intends to make payment
is performed.

(b) An agency shall keep complete and accurate records of all hours worked by its employees.

Footnote # 3 for
58 FLRA No. 109
- Authority's Decision

To the extent the Union's exceptions may be construed as challenging as a nonfact the Arbitrator's finding that the grievants
did not actually work the overtime, we deny this claim as this issue was disputed below. See Lowry Air Force Base, 48 FLRA at
594 (an award is not deficient as based on nonfact when the alleged nonfact resolves a matter that was disputed below). Accordingly,
we defer to the Arbitrator's finding on this matter.